Daily Bread for 8.25.23: Scenes from a Council Meeting (Representations)

Good morning.

Friday in Whitewater will be mostly cloudy with a high of 85. Sunrise is 6:12 AM and sunset 7:40 PM for 13h 27m 57s of daytime. The moon is a waxing gibbous with 61.5% of its visible disk illuminated.

On this day in 1944, the Allies liberate Paris.

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During its session on 8.15.23, the Whitewater Common Council entertained a motion to hire a third attorney at taxpayer expense to represent the Common Council. I’ve written before about the effort of longtime local politician Jim Allen to discuss the topic at the 8.1.23 council meeting.

(See on that 8.1.23 effort Whitewater Needs Neither a King Nor a Mind Reader: ‘A city serious about doing well by its residents requires serious, disciplined leadership. Right, center, or left matters far less than thoughtful, methodical, and composed. There are people from each part of the political spectrum in Whitewater who are like this, and Whitewater deserves no less in her council leadership.’

See on the matter of thorough work Scenes from a Council Meeting (Responsibility) ‘If a topic had been known at a meeting two weeks prior (discussed “ad nauseaum”), then there was ample time for a council member to present the topic before the subsequent meeting’s deadline. Government officials, themselves, should be expected to follow their deadlines. Their first reflex should not be to make it easier on themselves (“Oh, well, then I guess we’ll have to change that.”)

The latest council meeting, of 8.15.23, offered two issues of representation: whether the council would hire yet another legal representative but also how the council would represent their views to the city’s residents from whom their limited authority derives under law. It is this second aspect of representation through which one considers the presentation of facts and the quality of reasoning of elected leaders. 

One fruitfully finds professional reporting on the discussion at WhitewaterWise. See Council votes against hiring an attorney to advise on city manager-related personnel matters. I’ll assess the council discussion based on that reporting, supplementing where useful with my transcription of the discussion based on the recording embedded above.

Overview.  From the reporting, one reads that 

Initially an item labeled “Discussion on attorney to represent Common Council on personnel matters” appeared on the closed session meeting agenda, and an item labeled “Discussion and possible action regarding retaining an attorney to represent Common Council on personnel matters” was presented at the bottom of the open session agenda following the full three-item closed session agenda.

Council members opted to remove the item from the closed session agenda, leaving two closed session agenda items, including a discussion about the negotiation of an Aquatic and Fitness Center agreement with the school district, and a discussion regarding the performance evaluation of the city manager.

The discussion and possible action of hiring an attorney to represent the council remained on the agenda as an open session item and advanced in its placement to a position above the noticed adjournment into closed session. 

….

During discussion, and in a memo to council, Director of Human Resources Sara Marquardt noted that the city has on retainer two legal firms, including those of Harrison, Williams and McDonell, LLP, which provides services to the city through its lead attorney Jonathan McDonell, and von Briesen and Roper SC, which has served the city as “special legal counsel on matters the city attorney does not wish to address.” Within the memo, Marquardt listed contract negotiations and complex labor-related issues as among those that would likely be handled by the second firm’s lead attorney Kyle Gulya.

Would council opt to approve the motion made by Stone, she advised, the city would then be paying for three attorneys.

“Staff does not recommend moving forward with retaining an additional attorney for personnel matters. The city of Whitewater currently retains two competent and professional attorneys to handle city matters,” Marquardt wrote. 

Ambiguous wording and descriptions. On the agenda item and for much of the discussion, there is not a candid acknowledgment that hiring an attorney for “personnel matters” would involve representation only concerning the city manager. The agenda item could have been crafted plainly, but instead, it appears ambiguous in a way that conceals its purpose. A resident reading the agenda item would not know that the agenda had a single subject rather than many “personnel.”

The council president presents the motion as an “action regarding retaining an attorney to represent common council on personnel matters.” Transcript and Video @ 00:00.

After the meeting has begun, the moving councilmember modifies this item “to authorize the council to retain a separate attorney for common council’s use in regard to personnel matters or employees that council oversees.” Transcript and Video @ 00:16.

Again a minute later, that same member presents this nebulous and euphemistic phrasing: “I was looking for a possibly an attorney, that would represent the council on employees that the council oversees, only employees that the council oversees.” Transcript and Video @ 01:11.

Only after four minutes into the discussion of the item does the moving member admit the narrow scope of his motion when he acknowledges that “employees the council oversees, which is, again, the only one I know of is the city manager.” Transcript and Video @ 04:50. (The use of “again” is not because the moving member acknowledged plainly this simple fact before, but because it was pointed out plainly by someone else. Transcript and Video @ 1:32.) 

Shifting justifications. The first justification, coming from the council president, relies on the vacuous expression that council needs its own attorney because “what we’re looking to do here is something different that puts our attorneys in kind of a pickle.” Transcript and Video @ 00:42.

However otherwise delightful the expression kind of a pickle may be, that idiom has no useful, descriptive value to explain the justification for the motion. There are countless words in the English language that would, if used here, have been more informative. (I would very much hope — and am sure — that we teach our students in the Whitewater Unified School District to speak and write more precisely.) 

And yet, and yet, there is a single moment when this council president does claim a specific purpose: “We need separate representation when doing John’s performance evaluation.” (Reporting, Transcript, and Video @ 02:57.) 

He never uses this justification again, however, and retreats from it into the claim that “No. We don’t have a use for it right now, I don’t believe” (Transcript and Video @ 5:54) and that the motion is “just discretion” (Transcript and Video @ 6:10). The use of “right now” is a shallow evasion as no one would have expected the Whitewater Common Council to rely on a third attorney’s representation on the night of 8.15.23.

More evasive still is the use of “I don’t believe,” which either means the council president isn’t sure if the council might need an attorney that night (I’m joking) or can’t recall a justification he offered only three minutes earlier (about that point I have no idea). 

Presumptions and Behind-the-Scenes Discussions. From the reporting:

“This is the discussion of the public body, and in front of the pubic, as to whether or not the body is going to vote to do this. I, for one, am not supportive. We retain the counsel of two professional attorneys, one of whom specializes in labor relations. I do not feel that it is in the taxpayers’ best interest to hire another person because any one of us, or us as a body, feel that we are putting someone in an uncomfortable situation. They have taken their oath as an attorney; this is their job,” Dawsey Smith said. 

….

Said Brown: “I’m concerned why this is even coming up, because you’re not explaining why we would want to retain one (attorney) in the first place. And I’m starting to get concerned there has been a violation of open meetings, that people have been talking together in some way, because it seems like — I feel like there’s been a separate conversation happening.

Yes, indeed. There is no reasonable way to watch the recorded meeting and read the transcript and not see that some members of this council have worked together, before any public discussion, to act on their own without collective authorization. 

Worse, of course, the council president seems to have talked with the League of Municipalities without any reliable, independent record of his conversation, including how he might have framed any concerns: “But I talked to [pause] the League of Municipalities.” (Emphasis added. Transcript and Video @ 00:42.) Any communication should have followed a common council discussion, and then only have been made in writing. 

Hiring an Attorney and Statutory Construction. One of the councilmembers sensibly asks about how a council might retain an attorney, and the council president’s reply is, well, sub-optimal. Here’s the discussion:

Councilmember Hicks  
Is there typically a fee for retaining?

Human Resources Director Marquardt  
Yeah.

Councilmember Hicks  
So we, if we go get quotes, we pick one, we’re going to pay the fee to retain them?

Council President Allen  
We would give either their hourly rate or not to exceed.

Councilmember Hicks  
But, I mean, is there a yearly or monthly? How do you retain them? Well, so we pick one

Council President Allen  
Only as needed

Councilmember Hicks  
Only as needed, right? So we’re not paying monthly to hold the services of somebody who

Council President Allen  
No. We don’t have a use for it right now, I don’t believe.

Transcript and Video @ 05:26. 

No firm worth having would consider representation without knowing the scope of the work, the role of other attorneys representing the city, the insurance carrier that insures the city, and without expectation of a retainer. If the answer “no” from the council president to a reasonable question applies to whether a competent firm would expect a retainer, well, caveat emptor. 

In all of this, and beyond — discretion in the exercise of authority to seek counsel, as it turns out, is limited in the way all government should be limited: requiring a plainly stated, rational basis in compliance with law, procedure, and practicality.